Booth v. Barnum

9 Conn. 294

Opinion

Daggett, J.

Were there nothing else in the case, than that the defendant Barnum, when he took his deed, had no actual notice of the deed to the plaintiffs, there could be no question ; because it is settled law, that when a deed is lodged for rec-with the town-clerk, it is constructive notice to all the world. This principle has been so long established, and it is so essential to the preservation of all the benefits of the registering act, that it can admit of no doubt. The deed of the plaintiffs was left at the town-clerk’s office for record, on the 19th of July; the deed to Barnum was made on the 20th. «Wide Slat. tit. 56. Lands, sect. 9. and the numerous decisions, passim, throughout our books of reports. Indeed, this point is not made, by the counsel for the defendant; but he insists, that these notes and debts, not being accurately described in the condition of the mortgage deed, ought not to be considered as creating any lien upon the land; and that consequently, there can be no foreclosure against a bona fide incumbrancer.

This Court has had occasion frequently to consider objections of this nature ; and, in no instance, has an objection been entitled to less weight than that which is now made. It is very apparent, that, from the real or supposed necessity of taking immediate security for these debts, the plaintiffs’ agent» who drew this deed, had not the evidence of the indebtedness of the mortgagor to the plaintiffs, before him. He therefore stated the notes, erroneously, in a trifling degree, as to sums and dates.

(a) It is now insisted, that these discrepances shall avoid the deed. I think otherwise; and that in the absence of all fraud, it would be extremely inequitable to suffer such an objection to prevail. The principle laid down in one of the last cases, which has occurred, is, that the debts must be described with sufficient certainty to enable subsequent purchasers and creditors to ascertain, either by the condition of the deed or by enquiry aliunde, the extent of the incumbrance. Hubbard v. Savage & al. 8 Conn. Rep. 219. A more rigid doctrine cannot be adopted, without subverting the fairest contracts. In that case, all the prior cases were reviewed; cases were there cited of very high authority, in which even more liberal principles had been adopted. Shirras & al. v. Caig & Mitchell, 7 Crunch 34. Conrad v. The Atlantic Insurance Company of New-York, 1 Pet. Rep. 386.

Nor can I perceive any inconvenience to purchasers or creditors, when it is now considered everywhere as the settled doctrine in equity, that “ what is considered as sufficient to put a person on enquiry, is considered as conveying notice; for the law imputes to a person knowledge of a fact, of which the exercise of common prudence and ordinary diligence, mustN have apprised him.” Peters v. Goodrich, 3 Conn. Rep. 150. Sigourney v. Munn, 7 Conn. Rep. 333.

Now, apply that principle to the case before the Court. Could not the defendant, with entire ease, have ascertained from the facts disclosed in the condition, the amount of the indebtedness of Beers to the plaintiffs; and was not the notice such as ought to have put him on the enquiry l

] would advise the superior court, that the debts found are a lien on the property mortgaged.

Williams and Bissell, Js. were of the same opinion. Peters, J. acquiesced in the decision, though it was oppos- , . . V , , _ , ■ , 1 ed to the views which he formerly entertained. Hosmer, Ch. J. dissented.

Decree for plaintiffs.

The finding of the court specifies only two or three instances of dis-erepancy, and those as to sums alone ; but from a statement or schedule - exhibited by the defendant’s counsel, the correctness of which was not con. troverted, it appeared, that there were other inaccuracies in the description of the mortgage debts; none of more importance, however, than those upe. oified in the finding. R.